Hill v. Tri-County Metropolitan Transit District

962 P.2d 758, 154 Or. App. 544, 1998 Ore. App. LEXIS 1068
CourtCourt of Appeals of Oregon
DecidedJune 24, 1998
DocketWCB 94-09247, 94-09245, 94-09246; CA A92343
StatusPublished

This text of 962 P.2d 758 (Hill v. Tri-County Metropolitan Transit District) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hill v. Tri-County Metropolitan Transit District, 962 P.2d 758, 154 Or. App. 544, 1998 Ore. App. LEXIS 1068 (Or. Ct. App. 1998).

Opinions

EDMONDS, J.

Claimant seeks review of an order of the Workers’ Compensation Board denying his occupational disease claim relating to his left shoulder. The only medical evidence that supports compensability is the opinion of claimant’s treating physician. The Board found that opinion not persuasive and ruled that claimant had not carried his burden of demonstrating compensability. We review for substantial evidence and errors of law, ORS 183.482(7) and (8), and affirm.

Claimant has been a bus driver for employer since 1974. An occupational disease claim for his left shoulder was made in 1994 when plaintiffs treating physician sought authorization for surgery. Employer refused authorization, and the matter went to hearing. The administrative law judge (ALJ) found that claimant had an accepted 1977 worker’s compensation injury claim relating to his left shoulder. However, claimant testified that he has a problem with long-term memory as a result of a reaction to medication in 1978 and that he did not remember the disputed claim settlement' agreement that settled his 1977 claim. Employer offered Exhibits A and B at the hearing. Exhibit A is a copy of a 1982 disputed claim settlement agreement between SAIF, employer’s insurer at the time, and claimant regarding an aggravation claim relating to the 1977 injury. Exhibit B is a copy of a 1992 hospital admissions report regarding claimant’s surgery for an umbilical hernia. The report states that claimant “had mild arthritis in his shoulders and thoracic spine.”

Claimant objected to the admission of Exhibits A and B, contending that they should have been submitted to him in response to his prehearing discovery request. He argued that the failure of employer to provide discovery of the exhibits prevented him from obtaining medical evidence that might have supported his occupational disease claim. He requested an opportunity to review all the 1977 claim file material and to obtain additional medical evidence in light of that material. The ALJ admitted Exhibits A and B solely for purposes of impeachment and granted claimant’s request to examine the 1977 claim file. She also denied claimant’s [547]*547request for leave to submit additional medical evidence, but permitted him to submit information from the 1977 file. Ultimately, claimant submitted Exhibits C, D and E. Exhibit C is a workers’ compensation 801 form dated May 20, 1977, in which claimant reported left shoulder strain. The 801 form indicates that the claim was accepted by employer’s then insurer as a disabling injury on May 26,1977. Exhibit D is a May 24, 1977, medical report in which claimant reported pain in his left shoulder.1 Exhibit E is a November 22,1978, settlement document regarding a civil action relating to a 1978 motor vehicle accident in which claimant was injured. Exhibit E makes no reference to any left shoulder injury resulting from the accident.

After the evidentiary record was closed, the ALJ upheld employer’s denial of claimant’s occupational disease claim. Claimant appealed to the Board, arguing that the ALJ erred in upholding employer’s denial and in declining to permit claimant leave to present additional medical evidence. Claimant also requested that the matter be remanded to the ALJ and that the evidentiary record be reopened. The Board agreed with the ALJ that claimant had not established a compensable occupational disease claim on the record before it and affirmed her rulings. In response to claimant’s argument that the case should be remanded to the ALJ for reopening of the evidentiary record, the Board, in deference to claimant’s argument, deemed the evidence from the 1977 file to be unfavorable to claimant’s position and excluded Exhibits A, B, C, D and E from consideration as part of an alternative analysis of the evidence. Even after the evidence from employer’s file regarding the 1977 injury claim was excluded, the Board remained unpersuaded that claimant had demonstrated a compensable claim. It said:

“Dr. Schader [claimant’s treating physician] provides no explanation for his opinion. Furthermore, the record establishes that claimant sought treatment over the years for left shoulder pain and was diagnosed with tendinitis and bursitis without any indication as to the cause of these conditions.
[548]*548“Dr. Schader did not address these left shoulder conditions; instead, he simply stated, without explanation, that claimant’s current left shoulder condition was due to claimant’s driving a bus for 19 years.”

On review, claimant argues that the Board erred in not remanding the case to the ALJ and in refusing to permit the reopening of the hearing so that claimant would have an opportunity to obtain additional medical evidence based on the information about the 1977 claim. Claimant also focuses on the effect of the ALJ’s rulings regarding Exhibits A, C and D, arguing that admitting them into the record was error. He first asserts that employer violated OAR 438-07-015(2) (1994),2 which provides, in part:

“Within 15 days of [the request for hearing] the insurer or self-insured employer shall furnish the claimant and other insurers, without cost, originals or legible copies of all medical and vocational reports, records of compensation paid, and all other documents pertaining to the claim(s).”

OAR 438-07-017 (1994) provides:

“All medical or vocational material pertaining to, and created on or after the date of injury or exposure giving rise to, the claim(s) in issue at the hearing shall be disclosed under 438-07-015. Other documents reasonably believed relevant and material only for purposes of impeachment of a witness need not be disclosed in advance of hearing and may be offered and admitted solely for impeachment. Documents so offered shall not be considered by the referee as substantive evidence. Upon request, all such documents shall be disclosed prior to the close of the hearing, whether or not offered, at which time the other party may offer the documents as substantive evidence.”

We do not agree with claimant’s argument that the ALJ’s rulings violated the above rules. Claimant objected to the admission of Exhibit A. That exhibit was received only for impeachment purposes. Under OAR 438-07-017, the ALJ did not err. Employer was not required to furnish discovery of Exhibit A under OAR 438-07-015(2) so long as it reasonably believed that the exhibit was relevant only for impeachment [549]*549of claimant’s position that his left shoulder condition in 1993 was the result of his work for employer. Claimant testified that he never had any problems with his left shoulder before March or April 1993. Evidence of a 1982 disputed claim settlement of an aggravation claim relating to the 1977 injury is evidence that impeaches claimant’s testimony in that respect. Exhibit A is not a document subject to disclosure under OAR 438-07-015. It is about an injury claim accepted by a former insurer that occurred 17 years before the occupational disease claim that is the subject of this case. Moreover, there is nothing in the record to demonstrate that employer lacked a reasonable belief that the document was relevant only for impeachment purposes. As to the admission of Exhibits C and D, claimant cannot be heard to complain about the consideration of them by the Board and the ALJ when he offered them into evidence and they were considered by the ALJ.

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Related

§ 183.482
Oregon § 183.482
§ 656.802
Oregon § 656.802

Cite This Page — Counsel Stack

Bluebook (online)
962 P.2d 758, 154 Or. App. 544, 1998 Ore. App. LEXIS 1068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-tri-county-metropolitan-transit-district-orctapp-1998.